Procedural bias and constructive dismissal

Fair and independent handling of employee grievances can reduce the risk of successful constructive unfair dismissal claims.

The Employment Appeal Tribunal (EAT) recently considered whether an incomplete, yet flawed grievance process was relevant to determine a fundamental breach of contract.

Background

The Claimant was a teacher who asserted that her employer had breached the implied term of trust and confidence. She raised a grievance over the “threatening, insensitive and aggressive” behaviour of the Head Teacher and how that was handled.

Witnesses to a workplace incident confirmed that the Head Teacher raised her voice in an angry tone. The Claimant left her office looking visibly upset, followed by the Head Teacher who said, “If you’ve got something to say, say it to my face” and “What we were discussing is confidential”. 

Following an investigation, the Education Manager did not find evidence that the Head Teacher was “threatening, insensitive and aggressive”. 

The Claimant’s appeal was not upheld. She was reminded of her right to appeal to stage three of the grievance procedure.  Instead, the Claimant resigned with immediate effect, citing a ‘serious material breach’ of contract and constructive dismissal.

Employment Tribunal (ET)

The ET found that stage one of the grievance process was biased against the Claimant, and stage two was inadequate to detect and correct the earlier bias.

However, there was no breach of the implied term of trust and confidence because, although the relationship between the parties had been damaged, the situation had not reached the level of serious damage to the relationship of trust and confidence and was therefore insufficient to constitute a breach of the implied term.

On the claim of constructive dismissal, the internal grievance process had not been exhausted when she resigned, so the claim was dismissed.

Employment Appeal Tribunal

Upholding her appeal, the EAT found that the ET had incorrectly considered the Claimant’s failure to engage with the final stage of the grievance process. This was an irrelevant consideration as to whether a repudiatory breach had occurred.

Comment

In constructive unfair dismissal cases, the ET will consider the employer’s actions, not those of the employee, in determining whether there has been a fundamental breach of the implied term of trust and confidence.

When an employee raises a grievance like this, the employer should ensure that the grievance process is followed comprehensively and that a fair and independent process can occur.

Where there is a risk of bias or impartiality, protect your position by involving an independent third party in the grievance process.

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